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M/s. Oberoi Automobiles Pvt. Ltd. v/s Ranbir singh

    First appeal No. 543 of 2014

    Decided On, 25 November 2014

    At, Haryana State Consumer Disputes Redressal Commission Panchkula

    By, THE HONOURABLE MR. R.K. BISHNOI
    By, JUDICIAL MEMBER & THE HONOURABLE MRS. URVASHI AGNIHOTRI
    By, MEMBER

    For the Appellant: S.R. Bansal, Advocate. For the Respondent: A.S. Chahal, Advocate.



Judgment Text

R.K. Bishnoi, Judicial Member:

Respondent-complainant deposited Rs.25,000/- on 26.02.2013 with appellant-opposite party No.1 to purchase Chevrolet Sail LS ABS Sedan car and tentative date for delivery was 12.03.2013. On the aforesaid date he visited the office of appellant but the car was not supplied and the matter was put off under pretext or the other. Opposite party No.1 stated that he should provide the address of Ambala to take delivery of the car. Ultimately he sent notice dated 22.03.2013 to deliver the vehicle within seven days but without any result. Due to this reason he was forced to purchase car from Aaryaman Motors Karnal and paid Rs.5000/- in excess. In the meantime Government of Haryana raised the road tax and he was to pay extra amount for the same. He suffered from mental as well as physical harassment. So the opposite party be directed to refund the booking amount alongwith extra payment and compensation for harassment to the tune of Rs.Three lacs besides interests.

In reply, opposite party No.1-Appellant alleged that the complainant is not covered by the definition of consumer as per opinion of Hon’ble National Commission in Maruti Udyog Ltd. Vs. Bhuvana Vishwanathan reported in CPC-1993, page 121. There is no relationship of consumer and supplier in between them. It is admitted that he booked the car but alleged that he did not come on 12.02.2013 to take delivery. Information was given to him on mobile number but thereafter he did not prefer to take delivery of the vehicle. Other averments also denied and alleged that complaint be dismissed.

Opposite party No.2 alleged that the complainant has no connection with it. Complainant is not consumer as far as it’s case is concerned. It is no where alleged that there was any manufacturing defect so the company does not come in the picture. Other averments are also denied and alleged that complaint be dismissed.

After hearing both the parties the learned District Forum allowed the complaint and directed as under:-

'….Accordingly, the complaint is accepted in above terms against opposite party No.1 and he is directed to comply with the following directions within thirty days from the receipt of copy of this order:-

i. to refund Rs.25,000/- to the complainant alongwith interest @ 9% from the date of booking of the car i.e. 26.02.203 till its realization.

ii. To pay Rs.3492/- which had to incur in excess by the complainant for purchasing of the car from another dealer at Karnal alongwith interest @ 9% from 29.03.2013 till its realization.

iii. And to pay a sum of Rs.10,000/- (Ten thousand only) as compensation for harassment and mental agony etc.

iv. Also to pay Rs.10,000/- (Ten thousand only) on account of Advocate’s fee & litigation expenses to the complainant.

Further the award in question/directions issued above shall be complied with by the opposite party No.1 within a stipulated period failing which the whole awarded amount shall attract interest @ 12% per annum for the period of default.'

Feeling aggrieved therefrom, the opposite party No.1-appellant has preferred this appeal on the ground that the learned District Forum did not appreciate law and facts properly. There is no evidence on the file to show that they ever refused to deliver the car on the ground that he was resident of Jagadhri. Information was given to him through mobile telephone number but he did not preferred to take delivery from them and went to Karnal. After filing of complaint the matter was fixed for compromise and they were ready to return the booking amount alongwith some more amount but he refused to accept the same. As per opinion of Hon’ble National Commission in Nanu Bhai Versus Maruti Udyog Limited and another, 1 (1996), CPJ 91 (NC) and M/s Maruti Udyog Limited Versus Mrs. Bhuvana Viswanathan and others, 121 CPC 1993, there is no relationship of consumer and supplier in between them. It is not covered by Section 2 (o) of the Consumer Protection Act, 1986 (in short 'Act').

Arguments heard. File perused.

Learned counsel for the appellant-opposite party No.1 vehemently argued that as per opinion in Nanu Bhai’s case and M/s Maruti Udyog Limited’s case (Supra) the booking of car does not fall within the definition of service and he cannot be considered as consumer and complaint is not maintainable under the provisions of the Act.

This arguments is devoid of any force. As per facts mentioned above, it is clear that the complainant deposited Rs.25,000/- with the appellant for the delivery of the car. If the car is not delivered as promised by the appellant, it should be considered as deficiency in service. The aforesaid judgements were passed in the year 1991 and 1993 respectively. Whereas Section 2(o) was amended w.e.f. 15.03.2003. For ready reference Section 2(o) is reproduced as under:-

'Service' means service of any description which is made available to potential (users and includes, but not limited to, the provision of) facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, (housing construction), 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;'

As per this section service of any description is made available to potential users also and is not limited to the actual user only. The above said provision was added by way of this amendment. It means that if any person is potential user of any service then he is also covered by this provision. When the aforesaid judgements were passed this provision was not included in Section 2 (o). In Nanu Bhai‘s case (supra) case only 500 cars were to be booked up to 31.12.1991, whereas booking reached the figure of five thousand on 19.12.1991. Whereas complainant booked the vehicle on 23.12.1991. Now it cannot be alleged by the appellant that complainant is not a consumer. My this view are also fortified by the opinion of our Hon’ble Supreme Court expressed in M/s Narne Construction P. Ltd. etc. Vs. Union of India and Ors. 2012 (3) RCR (Civil) 127 and M/s National Seeds Corporation Limited Vs. M.Madhusudan Reddy and another 2012 (1) RCR 838, case law cited by learned counsel for the complainant.

When it’s established that the booking of a car is covered by the service and the complainant is to be considered as a consumer, it is to be seen whether there is deficiency in service or not. It is argued by the counsel for appellant that they never refused to supply the car on the ground that he was resident of Jagadhri and their office was located as Ambala. Had it been so they could have asked complainant to obtain car from their agency existing at Jagadhri. This is no ground to deny the delivery because ultimately complainant obtained car from Karnal. They gave him telephonic message to take the delivery but he did not come. He has failed to prove that they denied delivery on the ground alleged by him.

This version is not believable. When complainant had booked the car what was the hitch from him to purchase car from opposite party No.1. Had he not been interested in purchasing a car he would not have gone to Karnal. As per complainant they are having their showroom at Jagadhri also, but, complainant might not have gone there due to their behaviour when he booked car at Ambala and they were not cooperating in any manner why will he go to their office at Jagadhri. Had they been interested in supplying the car they could have supplied it on that very day. Appellant has also not produced the stock register showing that the car was available with them on 12.03.2013. The opposite party No.1 has not produced any evidence on the file to show that they gave telephonic message to the complainant about taking delivery as alleged by them. Had i

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t been so they must have given reply of his notice Ex.C-4. From the perusal of receipt Ex.C-6 it is clear that this notice was received by appellant. Why they preferred not to give reply of notice is no where explained. In these circumstances it can be presumed that the opposite party No.1 did not deliver the car to the complainant on 12.03.2013. The complainant was forced to go to Karnal and pay extra money and extra tax. So he was entitled for the compensation as awarded by the District Forum due to deficiency in service. No other point was urged before us. In view above discussion, impugned order dated 30.05.2014 cannot be set aside. Hence the appeal fails and the same is hereby dismissed. The statutory amount of Rs.25,000/- deposited at the time of filing of the present appeal be refunded to the appellant against proper receipt and due verification.
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